Expert Chat for Physicians: Benefits Under the Recent Law

Jennifer Wipf: Good evening everyone. Welcome to the expert chat on Physicians: Benefits Available Under The New Law. This is Jennifer Wipf and I will be moderating this chat hosted by leading immigration attorney, Carl Shusterman, who is on the phone with us right now.

Welcome Carl.

Carl Shusterman:  Good evening everyone!

Question #1 -   What is the most recent law regarding physicians and NIW?

Then, in August of 1998, the Immigration Service published a decision (Matter of New York State Dept. of Transportation), which caused NIWs to go the way of the dinosaurs.

The Physician Law signed by Clinton back in November 1999, and still valid in 2006, contains a section which allows certain foreign born physicians employed in medically underserved areas or for the Veteran's Administration to again apply for NIWs.

In brief, the law creates an exception to Matter of New York State Dept. of Transportation.

Question #2   - Both my wife and I are working as physicians in MUAs after J1 waivers. Do both have to separately obtain NIWs?

Carl Shusterman:  No. If one of you obtains a green card through a NIW the other will automatically be able to obtain permanent residence. However, both of you must fulfill the three-year requirement for obtaining a J waiver assuming that you were both sponsored by "interested government agencies (IGAs)."

Only the spouse who applies for a NIW is subject to the five-year requirement under the new law.

Carl Shusterman:  No. You must complete 5 years of employment in a medically underserved area after receiving your J-waiver. See:
http://shusterman.com/hr441-5.html

for details.

Question #4:  My NIW was filed before  November 98 & denied. Should I file a Motion to Reopen or should I re-file a new petition, or both?

Carl Shusterman: Since the Immigration Service has not yet provided instructions concerning how to comply with this new law, it is unclear how a person may have the NIW denial reopened.

However, rather than submit a motion to reopen for a new petition (both of which involve paying additional filing fees), we are simply asking INS to reopen these cases on their own motion.

Question #5: If I file for the NIW and my H1 expires can I stay in the US?

If you were subject to the two-year home residency requirement and received a waiver based on sponsorship by an IGA, you must remain in H1-B status for a minimum of three years.

However, if you have an approved NIW, then during years 4 and 5 you can work on an Employment Authorization Document (EAD) assuming that you have submitted an application for Adjustment of Status.

Jennifer Wipf: Thank again. Here's our next question:

Carl Shusterman:  Yes. Filing an H-1B extension and an NIW petition are not mutually exclusive.

Let me reiterate.

In order to obtain a J-waiver through an IGA, you must remain in H-1B status for a minimum of three years. To achieve permanent residence through an NIW you must remain employed in a medically underserved area for five years. 

However, although the physicians covered by the three-year rule and the five-year rule are usually the same.

It ain't necessarily so.

For example: A Canadian physician who is employed in H-1B or O-1 status in a medically underserved area may decide to apply for a NIW even though he or she was never in J status.

However, doing so makes the physician subject to the new law's five-year rule, but not to the three-year rule, which only applies to physicians obtaining waivers through IGAs.

Alternately, a physician who obtained a J-waiver through an IGA and who is married to a US citizen, does not need to subject himself to the five-year rule for NIWs since it would be easier for him to obtain permanent residence through his wife.

Jennifer Wipf: Very helpful. Here's a very popular question tonight:

Question #7:  Will there be a difference in processing times for NIW petitions based on the INS service center?

Question # 8:  When will the INS hold be released and what are the reasons for the hold?

However, since only 70 days have elapsed since the president signed the law it is highly unlikely that any NIW petitions would have been approved yet anyway.

The reason that we are continuing to submit NIW applications during the "hold" period is two-fold:

1) The petitions will be adjudicated chronologically therefore, the first petitions that are filed will be the first approved, allowing the physician and his family to apply for Adjustment of Status more rapidly than other physicians who fail to submit NIWs during the hold period. This will allow family members to obtain EADs and travel permits.

Jennifer Wipf: Here's one that more than 5 people are asking about tonight:

Carl Shusterman: Taken at face value, this question sounds like a "no brainer" ---

Why would anyone subject themselves to the J's two year home residency requirement when
the H-1B visa contains no such requirement?

However, on reflection there are a few reasons why this may be so.

Most medical students and many IMGs have not passed all USMLE III, which is a requirement for obtaining an H-1B visa.

Also, many residency programs refuse to sponsor physicians for H-1B status :(

And finally, the INS has predicted that the H-1B cap will be applied to those petitions filed on some unspecified date in March.

Question #10: Do you think a letter stating that physicians work is in "public interest" from county Dept. of Public Health would be enough for the INS to grant NIW under the new law?

Carl Shusterman:  Section Five of the new law specifies that the Public Interest Letter must come from "a Federal agency or a Department of Health in any state". Notice that the law does not say a State Department of Public Health but rather a "Department of Public Health in any state." This should allow "city and country health departments to write such letters."

Question #11:  Is only the residency program supposed to file for NIW or can some other agency do it?

Carl Shusterman: Although your employer may petition you for a NIW, remember that the law allows you to self-petition.

After completing the three years required for former J visa holders to work for a particular employer, the last two years may be satisfied by working for another employer or by opening your own practice as long as you stay within the medically underserved area.

Question #12:  Could you please comment on H1 physicians for NIW, without IGA sponsor?

Carl Shusterman:  Remember that the new law does not just apply to IMGs with J waivers. Even a physician who has always been in H-1B status may apply for a NIW under the new law. However, by so doing, the physician subjects himself to working in a medically underserved area for five years.

For many H-1B physicians, a better and more expeditious alternative may be to apply for permanent residence on the basis of an RIR Labor Certification.

See: http://shusterman.com/gal197.html

Question #13: So if an H1 is working in a non HPSA/MUA do they have to relocate for NIW?

Carl Shusterman: Yes.

Jennifer Wipf: Our shortest answer yet :-)

Here's our next question:

Question #14: Can an IMG remain on J1 visa for a few months during first year of residency and then convert to H1B visa when they become available next year and remain on H1B there after?

Carl Shusterman: If you start a residency in J-1 status, you are going to be finishing in J-1 status.

This is because it is all but impossible for someone to obtain a J-waiver in the middle of a residency. The only ways of accomplishing this would be to obtain a waiver based on asylum, or exceptional hardship to family members. See:

http://shusterman.com/j-vsa.html

In reality over 90% of physician J waivers are based on sponsorship by an IGA. This can occur only at the end of the residency program.

Question #15: What happen to someone who currently has a J1 visa and wants to change to an O visa and later to a EB1 or EB2 visa? Can this be done? Will this avoid the two year country of residence law or the requirement to obtain a waiver?

Carl Shusterman: Obtaining an O-1 visa does not relieve a J-1 physician from the two-year home residency requirement. Therefore, before a former J-1 visa holder may obtain a green card, he still must obtain a waiver, of the home residency requirement or return to his country for two years.

Jennifer Wipf: Oops! We have gone past schedule :) It's now quarter past and time to bid Mr. Shusterman farewell. :)

Carl Shusterman:   Jennifer, it's been a pleasure chatting with everyone this evening. I hope we've been able to shed some light on the requirements of the new law will join us on February 7th for our next chat: Strategies for Persons from Backlogged Countries.

In the meantime, physicians with additional questions about the new law may wish to consult http://shusterman.com/img99faq.html

Jennifer Wipf:   Good night Carl!

Remember to follow-up with these popular and informative links:

Physician Immigration Page, compiled by Carl Shusterman, Esq.
Includes J-1 FAQs, health professional shortage areas, H-1B details, employment articles and more.

The Health Care Industry - An Born Abroad site covering employment, laws and issues, and more.

Immigration Articles & Chat Transcripts from the guides to this site, Peter and Jennifer Wipf.

Daily Immigration News compiled by your editors.

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